Citation NR: 9617813
Decision Date: 06/26/96 Archive Date: 07/08/96
DOCKET NO. 94-11 575 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an increased (compensable) rating for
hepatitis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from September 1967 to April
1970.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from decisions of March 1993, January 1994,
and December 1995 by the Department of Veterans Affairs (VA)
Louisville, Kentucky, Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO made a mistake by assigning
only a noncompensable rating for his service-connected
hepatitis. He asserts that as a result of the disorder he is
very tired and has no energy. He also asserts that he
experiences diarrhea all the time.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increased (compensable)
rating for hepatitis.
FINDINGS OF FACT
1. All evidence necessary for equitable resolution of the
issue on appeal has been obtained.
2. The veteran’s hepatitis is healed and nonsymptomatic, and
there is no evidence of liver damage.
CONCLUSION OF LAW
The criteria for a compensable rating for hepatitis are not
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.115, Diagnostic Code 7345 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The United States Court of Veterans Appeals (Court) has held
that a mere allegation that a service-connected disability
has become more severe is sufficient to establish a well-
grounded claim for an increased rating. See Caffrey v.
Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2
Vet.App 629, 632 (1992). Accordingly, the Board finds that
the veteran’s claim for an increased rating is “well-
grounded” within the meaning of 38 U.S.C.A. § 5107(a) (West
1991).
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue on appeal has been
obtained. The evidence includes the veteran’s service
medical records and reports of VA disability evaluation
examinations. The veteran has declined the opportunity to
have a personal hearing. The Board does not know of any
additional relevant evidence which is available. There is no
indication that the veteran has received any recent treatment
for hepatitis. Therefore, no further assistance to the
veteran with the development of evidence is required.
In a decision of February 1993, the Board granted service
connection for residuals of hepatitis B on the basis of the
veteran’s service medical records showing treatment for
hepatitis and the positive serological markers for hepatitis.
In a rating decision of March 1993, the RO assigned a
noncompensable rating for the veteran’s service-connected
hepatitis. The veteran disagreed with that rating and
perfected this appeal.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155 (West 1991). Separate diagnostic codes identify the
various disabilities. Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. Francisco v. Brown, 7 Vet.App.
55, 58 (1994).
Under 38 C.F.R. § 4.115, Diagnostic Code 7345 (1995), a
noncompensable rating is warranted for infectious hepatitis
which is healed and nonsymptomatic. A 10 percent rating is
warranted where there is demonstrable liver damage with mild
gastrointestinal disturbance. A 30 percent rating is
warranted where there is minimal liver damage with associated
fatigue, anxiety, and gastrointestinal disturbance
necessitating dietary restriction or other therapeutic
measures. A 60 percent rating is warranted where there is
moderate liver damage and disabling recurrent episodes of
gastrointestinal disturbance, fatigue, and mental depression.
A 100 percent rating is warranted where there is marked liver
damage manifest by liver function test and marked
gastrointestinal symptoms, or with episodes of several weeks
duration aggregating three or more a year and accompanied by
disabling symptoms requiring rest therapy.
The evidence which has been developed in connection with the
veteran’s claim for an increased rating for hepatitis
includes a report of a digestive system examination conducted
by the VA in April 1992 which shows that the diagnoses
included (1) status post hepatitis B, no residuals; (2)
fatigue, etiology undetermined; and (3) smoker.
A report of a physical examination conducted by the VA in May
1992 shows that the veteran reported having chronic diarrhea,
recent weight loss, and a feeling of being tired which began
one year earlier. Physical examination was within normal
limits. The liver was not enlarged. The impression was (1)
fatigue, cause undetermined; (2) history of hepatitis; and
(3) chronic smoking. A subsequent report of VA
hospitalization dated in May 1992 shows that the veteran
underwent a liver biopsy which was interpreted as being
normal. Liver enzyme tests were also within normal limits.
An abdominal sonogram was interpreted as being normal, with
the hepatic parenchyma and biliary duct system being normal.
A June 1992 report of blood serum testing conducted by the VA
shows that the test was positive for anti-hepatitis antigens.
During an alimentary appendages examination conducted by the
VA in October 1993, the veteran gave a history of having been
hospitalized during service for 44 days for treatment of
hepatitis. His current subjective complaints included having
loose or watery stools several times a day. He stated that
this had been occurring since his release from service. He
also complained of feeling tired all of the time. On
physical examination, the veteran was alert and in no
distress. His nutritional status was normal. He did not
appear to be chronically ill. His height was 67 and 1/2
inches, and his weight was 171 pounds. There was no
jaundice. His abdomen was soft and nontender, and there were
no masses. The liver was not enlarged to percussion. On
rectal examination, there was a trace of loose stool present
which was hemocult negative. The diagnosis was “history of
hepatitis, present diagnosis deferred pending results of
today’s lab work. There was no clinical evidence of active
hepatitis.” A VA laboratory report dated in November 1993
shows that testing of a serum specimen showed that the
findings were all at or near the normal reference range.
The evidence also includes a report of an alimentary
appendages examination conducted by the VA in November 1995
which contains similar information. The report shows that
the veteran again complained of having chronic diarrhea and
feeling rundown. The veteran denied having abdominal
discomfort, nausea, vomiting, pain, or anorexia. He stated
that he had gained 20 pounds over the prior year, and that
his weight fluctuated up and down by as much as 20 pounds
within a year. He complained of chronic generalized
weakness, but stated that he worked as a painter for 10 hours
a day. He stated that he felt more tired on some days than
others. On objective examination, the veteran was in no
acute distress. His skin was warm, pink, and dry. There was
no jaundice noted. The abdomen was round and soft with bowel
sounds auscultated in four quadrants. There were no palpable
masses. Stool was guaiac normal. The diagnosis was history
of Hepatitis B in the past with no evidence of chronic or
active hepatitis at this time on physical examination.
Based on the foregoing evidence, the Board finds that the
veteran’s hepatitis is nonsymptomatic, and there is no
evidence of liver damage. The liver biopsy performed in May
1992 was normal as was an abdominal sonogram. Multiple VA
examinations did not reflect any clinical evidence of the
presence of liver disease or active hepatitis. Although the
veteran has reported having chronic diarrhea and fatigue,
there is no competent medical evidence showing that these
complaints are attributable to his hepatitis. Accordingly,
the Board concludes that the criteria for a compensable
rating for hepatitis are not met. 38 U.S.C.A. § 5107(a)
(West 1991).
In Floyd v. Brown, 9 Vet.App. 88 (1996), the Court of
Veterans Appeals held that the Board does not have
jurisdiction to address the provisions of 38 C.F.R.
§ 3.321(b)(1), pertaining to the assignment of extra-
schedular evaluations, in the first instance. However, there
has been no assertion or showing that service-connected
disability has caused marked interference with employment or
necessitated frequent periods of hospitalization. In the
absence of such factors, the Board is not required to remand
this matter to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, No. 95-238,
slip op. at 3, (U.S. Vet. App. May 28, 1996); Shipwash v.
Brown, 8 Vet.App. 218, 227 (1995).
ORDER
An increased (compensable) rating for hepatitis is denied.
CONSTANCE B. TOBIAS
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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